MEDIATION

Mediation is the facilitation of a negotiated agreement by a neutral third party

who has no decision-making power. Mediation is now recognised as one of
the quickest and most cost-effective ways of resolving a dispute and is the
most common form of ADR.
Mediation is a structured negotiation process in which an independent person, known as a mediator,
assists the parties to identify and assess options and negotiate an agreement to resolve their
dispute. Mediation is an alternative to a judge imposing a decision on the parties.

Mediation is another of the methods of alternative dispute resolution (ADR) available to parties.
Mediation is essentially a negotiation facilitated by a neutral third party. Unlike arbitration, which
is a process of ADR somewhat similar to trial, mediation doesn't involve decision making by the
neutral third party. ADR procedures can be initiated by the parties or may be compelled by
legislation, the courts, or contractual terms.

Mediation is commonly used in family law matters, such as divorce and child

custody, but it is also used in other civil cases.

What are essential characteristics of mediation process?

 involves two or more parties in dispute over one or more contract

issue(s)
 entirely voluntary for non-litigious disputes
 non-coercive, in that the mediator does not decide for the parties, but
rather encourages them to agree to a settlement
 'assisted negotiation', the third party neutral (mediator) remains
impartial
 mediator may provide relationship-building or procedural assistance
and options which had not been previously contemplated by the parties
 mediator encourages parties to explore alternate possibilities/options
in settling the dispute
 more informal and relaxed than that of a court or an arbitration
 rules are those which are agreed to between the parties
 confidentiality is an important ingredient of mediation
 all communications are without prejudice and cannot be used as
evidence in subsequent arbitration or court action (those normally
available through Access to Information and Privacy (ATIP) remain
available)
  each of the disputing parties control the disclosure of information to
the mediator and what information can be disclosed to the other
parties

https://www.tpsgc-pwgsc.gc.ca/biens-property/sngp-npms/bi-rp/conn-know/reclam-claims/definition-
eng.html

Alertness

The mediator must be alert on several levels while mediating. He must concentrate on the
information being provided by the source and be constantly evaluating the information for both
value and veracity. Simultaneously, he must be alert not only to what the party says but also to
how it is said and the accompanying body language to assess the party’s truthfulness, degree of
cooperation, and current mood. He needs to know when to give the party a break and when to
press the party harder. In addition, the Mediator constantly must be alert to his environment to
ensure his personal security and that of the parties.

Patience and Tact

The Mediator must have patience and tact in creating and maintaining rapport between himself
and the party, thereby enhancing the success of the process. Displaying impatience may:

 Encourage a difficult party to think that if he remains unresponsive for a little longer, the
process will end.
 Cause the party to lose respect for the Mediator, thereby reducing the Mediator’s
effectiveness.

Credibility

The Mediator must provide a clear, accurate, and professional product and an accurate
assessment of his capabilities. He must be able to clearly articulate complex situations and
concepts. The Mediator must also maintain credibility. He must present himself in a believable
and consistent manner, and follow through on any promises made as well as never to promise
what cannot be delivered.

Objectivity and Self-control

The Mediator must also be totally objective in evaluating the information obtained. The mediator
must maintain an objective and dispassionate attitude regardless of the emotional reactions he
may actually experience or simulate during a questioning session. Without objectivity, he may
unconsciously distort the information acquired. He may also be unable to vary his questioning
and approach techniques effectively. He must have exceptional self-control to avoid displays of
genuine anger, irritation, sympathy, or weariness that may cause him to lose the initiative during
questioning but be able to fake any of these emotions as necessary. He must not become
emotionally involved with the party.

Adaptability

A Mediator must adapt to the many and varied personalities which he will encounter. He must
also adapt to all types of locations, operational tempos, and operational environments. He
should try to imagine himself in the party's position. By being adaptable, he can smoothly shift
his questioning and approach techniques according to the operational environment and the
personality of the party.

Perseverance

A tenacity of purpose can be the difference between a Mediator who is merely good and one
who is superior. A Mediator who becomes easily discouraged by opposition, noncooperation, or
other difficulties will not aggressively pursue the matter to a successful conclusion or exploit
leads to other valuable information.

Appearance and Demeanor

The Mediator's personal appearance may greatly influence the conduct of any mediation and
attitude of the party toward the Mediator. Usually an organized and professional appearance will
favorably influence the party. If the Mediator's manner reflects fairness, strength, and efficiency,
the party may prove more cooperative and more receptive to questioning.

Trustworthiness

A good mediator inspires trust. When people attend a mediation

session, they want to believe that the mediator will keep all
discussions confidential and use any information they receive to reach
a mutually acceptable resolution to the situation. If clients don’t get
this impression, they won’t talk openly and the purpose of mediation is
defeated. On the other hand, if the mediator’s manner reflects
sincerity, strength, and fairness, both sides may be more cooperative
and receptive to the mediation process.

https://www.mediate.com/articles/imperati1.cfm

Stages of Mediation

Many people think that mediation is an informal process in

which a friendly mediator chats with the disputants until they
suddenly drop their hostilities and work together for the
common good. It doesn’t work this way. Mediation is a multi-
stage process designed to get results. It is less formal than a
trial or arbitration, but there are distinct stages to the
mediation process that account for the system’s high rate of
success.
Most mediations proceed as follows:
Stage 1: Mediator's opening statement. After the disputants
are seated at a table, the mediator introduces everyone,
explains the goals and rules of the mediation, and encourages
each side to work cooperatively toward a settlement.
Stage 2: Disputants' opening statements. Each party is
invited to describe the dispute and its consequences, financial
and otherwise. The mediator might entertain general ideas
about resolution, as well. While one person is speaking, the
other is not allowed to interrupt.
Stage 3: Joint discussion. The mediator might encourage the
parties to respond directly to the opening statements,
depending on the participants’ receptivity, in an attempt to
further define the issues.
Stage 4: Private caucuses. The private caucus is a chance for
each party to meet privately with the mediator. Each side will
be placed in a separate room. The mediator will go between
the two rooms to discuss the strengths and weaknesses of
each position and to exchange offers. The mediator continues
the exchange as needed during the time allowed. These
private meetings comprise the guts of mediation.
Stage 5: Joint negotiation. After caucuses, the mediator
might bring the parties back together to negotiate directly, but
this is unusual. The mediator usually doesn’t bring the parties
back together until a settlement is reached or the time allotted
for the mediation ends.
Stage 6: Closure. If the parties reach an agreement, the
mediator will likely put its main provisions in writing and ask
each side to sign the written summary of the agreement. If the
parties didn’t reach an agreement, the mediator will help the
parties determine whether it would be fruitful to meet again
later or continue negotiations by phone.
https://www.nolo.com/legal-encyclopedia/mediation-six-stages-30252.html

How do the preparations for mediation take place?

Preparing for the Mediation

Once the parties have agreed to mediate, a lawyer and client should meet a reasonable time prior to the
mediation to prepare. Just like preparation is critical in negotiation or litigation, it is critical in mediation,
also. The following section covers the topics that should be discussed with a client prior to the
mediation. Preparation for mediation should not be discounted. Indeed, recent studies indicate that
cases are more likely to settle in mediation if the client is fully prepared for the mediation.

Explain the Process of Mediation

Don't assume your client will fully understand the mediation process. Take care to explain the difference
between mediation and litigation, pointing out that the mediator is not empowered to decide the
dispute and will not likely even render an opinion about who is right and who is wrong. Explain the
mediator's role carefully, mentioning that the mediator may function as a devil's advocate. Clients
sometime incorrectly assume the mediator is taking sides when he raises questions about a party's
position in the litigation.
Because mediation contemplates a full, complete and candid discussion about the dispute, tell your
client about the rule of confidentiality and explain that what is said in the mediation cannot be used
against the parties later in the proceeding, nor can the mediator be subpoenaed to testify. There may be
information, however, that you do not want disclosed under any circumstance. If so, review that
information with your client so that nothing inadvertently slips out.

Because the lawyer's role in mediation is quite different than in litigation, the differences should be
explained. The presentation of information about the case will be quite truncated and so the client
should not expect the pomp and circumstance associated with full blown litigation. Moreover, remind
your client that your role will be much more conciliatory than it would be in litigation and explain why
that must necessarily be the case in mediation.

Indeed, explain to your client that if mediation is to be successful it is important that the parties enter
into the process in good faith, with an open mind, and a willingness to consider a fair resolution of the
dispute. During the opening session I will restate this and normally will ask the parties to affirm that they
are participating in this spirit.

Client Participation

One of the guiding principles in mediation is that it is a process that empowers the parties to resolve the
dispute on terms they find mutually satisfactory. A client's active role in mediation is dramatically
different than the more traditional role of a party in litigation which is to stand quietly by while the
attorney does all the talking. Because mediation is intended to be a process in which the parties play a
major role, lawyers should prepare their clients to be active participants in the process. Of course, this
does not mean that the clients will be expected to discuss legal theories. But the parties should be
prepared to discuss the facts at issue, and of course, the terms of settlement. The mediator will probably
speak directly to the client during the process. The parties should be prepared for this.

Whom to bring to the mediation

Most attorneys understand that a party representative with appropriate settlement authority should be
in attendance at the mediation. Is the defendant expected, however, to have someone at the mediation
with authority to settle in the amount of plaintiff's demand, regardless of how high? Of course, not. The
parties should come into the mediation represented by individuals with appropriate settlement
authority.
It is important, however, that parties arrange in advance to be able to communicate with superiors
where additional settlement authority may be needed. Nothing is more frustrating when at the end of
the mediation, and only a few more dollars are needed, the company officer needed to sign off on the
final settlement is in another part of the country, has gone home, or is otherwise not reachable. Obtain
office and home numbers of everyone who will need to be consulted during the process and if a final
settlement is reached.

There is another aspect of this issue that is often overlooked. All disputes involve relationships between
people. Sometimes the parties involved have so much emotional baggage in defending the decision they
made which gave rise to the dispute, that settlement is quite challenging. When a business is a party to a
dispute, it usually is possible to include an additional representative, not directly involved in the dispute,
to help bring a more objective examination of the situation.

Mediation Memoranda

A hidden cost of mediation is the memoranda the parties often prepare to provide the mediator with
background about the dispute. Also known as settlement conference memoranda, these memoranda
are generally required by judges in judicially-supervised settlement conferences. Mediators can be more
flexible than judges and offer parties alternatives. If the mediator does not insist upon a specially
prepared memoranda, perhaps the parties can agree to provide the mediator with correspondence,
pleadings, disclosure statements or other documents that already exist.

If a mediation memorandum is prepared, counsel will need to know whether it should be exchanged
with the other side or whether it should be submitted to the mediator confidentially, and not shared
with the other side. Although the common practice is to submit these documents to the mediator or
settlement judge confidentially, I recommend that the parties exchange them. The more each side
knows how the other side views the dispute, the more likely the dispute will settle. If there is any
information that is truly confidential, the parties can provide that to the mediator in a separate
document, or they can tell the mediator during the first opportunity at the mediation.

If the memorandum is submitted confidentially to the mediator, it technically obligates the mediator to
keep confidential all the information contained in the memorandum. Because most of the information
discussed in these memoranda is not confidential at all, it is needlessly confusing to the mediation
process to suggest that undisputed facts, known to all parties, be treated confidentially.

Related Litigation
Occasionally, there are related claims and parties to a dispute. A related case may be pending in court,
or there are claims in the dispute involving other parties who are not intending to be part of the
mediation. This is important information for the mediator, particularly because the parties themselves
can sometimes inadvertently overlook the advantages of bringing all outstanding claims and related
parties into the mediation for a complete resolution of the dispute. Knowledge about other related
claims is critical for the mediator. The parties normally want closure to the dispute. The motivation of
the parties to settle will be enhanced if settlement means resolution of all claims not just a piece-meal
solution. Moreover, if there are other disputes, the parties to those disputes have additional resources
which can be contributed toward the resolution. Putting it bluntly, new parties can mean additional
sources of money which may expand the settlement pie.

The Opening Statement

Most settlement conferences before judges, and many mediations, begin with an opening statement
made by the attorneys. Attorneys often inquire about the necessity of making this statement and how to
present it. Counsel should know prior to the mediation whether such a statement will be expected.
There are several schools of thought about this.

Some mediators favor an opening statement. Their rationale is that the parties should be able to hear
first hand from opposing counsel about the case and the other side's position in the dispute. According
to the proponents of this approach, the opening statement is an aspect of "reality therapy" which is
important to the success of the mediation. The assumption is that each party's lawyer has not presented
very forcefully the opposing side's view to his client and that the parties themselves should hear directly
the other side's perspective on the dispute. Remember, however, everything that is communicated in
the opening statement can be communicated by the mediator during a later private caucus.

If there is to be an opening statement, counsel should be firm, but polite. Remember the mediation
adage--be soft on the person, hard on the problem. Although it is theoretically possible that counsel can
make an opening statement that adequately conveys a position in the case without offending the other
party, based on my experience in many mediations, this is the exception rather than the rule.

It is because the opening statement carries great risks, I now dispense with it in most cases. I believe
that an advocacy presentation at the outset of the mediation will normally only cause the parties to
become further entrenched in their positions. These statements necessarily tend to "throw stones" at
the other side, and when mud is being slinged, a person's reaction is to sling back. The process of
settlement is not furthered when the parties dig their heels in even more before the real work at
settlement even starts.
The proponents of the opening statement are correct in believing there is essential value in the reality
therapy of the mediation. It is not necessarily the case, however, that the reality must be brought home
by opposing counsel. The mediator has the primary responsibility to make sure the parties are fully
informed about the consequences which will occur if the dispute is not resolved, and so it is not
necessary, in my opinion, that opposing counsel deliver that message during the opening session.

I recognize that there may be exceptions to this rule, particularly where the parties themselves speak in
a joint session. This, of course, must be handled with care. If a lawyer intends to allow his client to speak
in the presence of the other side, careful thought must go into that presentation.

Identify interests of each party

Mediation allows the parties to resolve disputes in ways that meet their needs and interests. The
effectiveness of the mediation can be enhanced if the parties and their attorneys consider their interests
and the interests of the other side in anticipation of the mediation. Lawyers and clients will frequently
be the best source of creative ideas to resolve a dispute. Don't wait until the day of the mediation to rely
solely on the mediator to tap that creativity. Well before the mediation, begin focusing your attention
on the topic of "interests." As you prepare for the mediation ask your client to articulate clearly her own
interests and needs, and equally important, consider how the opposition would define its interests and
needs. Indeed, it may be useful to ask your client to specifically identify the other party’s perspective on
the dispute, and as the attorney, you should also present the other side’s arguments to your client as
impartially as you can.

Know the Case

It's surprising that the level of preparation for mediation varies so greatly. Perhaps because mediation is
a nonadjudicative form of dispute resolution, the need to prepare for mediation is perceived to be less
than the need to prepare for trial. Certainly, the preparation for mediation is quite different than for
trial. There are no witnesses to prepare. There are no exhibits to be marked. There is no opening
statement and closing argument to rehearse.

But just like in trial preparation, in preparation for mediation, good attorneys will master the facts and
the law pertaining to the dispute. The result of the mediation is a direct function of the party's position
and its ability to advocate that position in a persuasive manner. The resolution of a dispute through
mediation will be somewhere along a continuum between the parties' respective positions. Where
resolution is achieved along that line is directly a function of the respective strengths and weaknesses of
the parties' positions and the level of preparation and advocacy presented by the parties and their
counsel.
The party who is better prepared with an understanding of the facts and the law, and better able to
articulate why his or her view of the dispute is the correct one, is undoubtedly more likely to achieve a
result favorable to his or her position. As part of this preparation identify information that is needed
before settlement can occur that is not in your possession. If a party believes it needs certain
information upon which to make informed decisions about settlement, it must seek that information
before the mediation. Once counsel has determined whether any additional information is needed,
counsel should then focus on the strengths and weaknesses of their own case, and their opponent's.
During the mediation, each party must arm the mediator with arguments and analysis about their
respective positions. The mediator's ability to facilitate a resolution is greatly enhanced if the parties and
their counsel provide the mediator with arguments that will impact the resolution of the case.

Discuss Possible Outcomes

During the mediation it is common for the mediator to explore with the parties possible outcomes of the
dispute. Surprisingly, many lawyers do not discuss the range of outcomes in litigation as fully with their
clients as might be expected. Get a head start on this critical topic before the mediation.

Cases settle because the parties choose the certainty of the agreement reached during mediation over
the uncertainty of the resolution if left to a trial, as well as the transactional costs (e.g., time, money,
emotion, etc.) of continuing on with the dispute. Generally speaking, the result in litigation is uncertain.
The discussion of possible outcomes of the dispute between the lawyer and client will be important to
the success of the mediation.

Estimate costs of continuing litigation through trial

This is another critical component of the mediation which can be aided by pre-mediation preparation.
Very often, a prevailing party in litigation will be able to recover all or a portion of its fees from the
opposing party. Thus, by resolving the dispute through mediation, a party will avoid its own costs and
legal fees, and, depending upon the outcome of the case, avoid the possibility of paying their
opponent's fees. Fully understanding the economic cost of continuing on with the dispute always
facilitates settlement.

Develop settlement options

This is the last piece of the mediation mosaic. Although parties often look to the mediator for creative
solutions to problems, in truth, the parties' themselves are generally in the best position to develop the
creative solutions to the dispute. Start before the mediation by discussing this topic with your client as
part of the pre-mediation preparation discussions.

Ask your client to identify and list all of the things the other party can do to satisfy your client's interests.
Ask your client to identify and list as many possibilities of what he can do to satisfy the perceived
interests of the other party. In particular, ask him to list all necessary non-economic components of a
settlement. Surprisingly, many lawyers think of these issues for the first time as the final settlement
terms are being discussed.

Settlement Terms

In every settlement there are critical elements that must be included from each party's perspective.
These issues should be discussed before the mediation. These are often noneconomic issues which are
generally easily to resolve, particularly where they are articulated early in the process. Examples include
confidentiality, appropriate releases, obtaining settlement approval by public agencies. Make a list of
these topics beforehand so last minute introduction of critical terms can be avoided.

The important discussion to have before the mediation, however, concerns your client's position on the
ultimate issues in dispute. Assuming the issue is money and how much gets paid by one side to the
other, the parties should make some judgment about where they need to be when the process ends. It
is critical for your client to understand, however, that if the mediation is successful it is very often the
case that the party receiving a payment will get less than he or she anticipated, and the party making
the payment will pay more than he or she anticipated.

The reason for this is that the parties' settlement positions will change as a result of the mediation
process. When the parties assess their positions before the mediation, that is done without the benefit
of the give and take discussion that occurs during the mediation. It occurs without the important
feedback received from the mediator.

Thus, it is unwise to decide in advance with your client on a bright line beyond which you will not move.
It is better to think in terms of settlement ranges, reminding your client to approach the process with
flexibility. Alert your client to the give and take that will occur during the mediation, and that if
settlement is to be achieved, their most optimistic expectations may not necessarily be realized.
There is important new research that documents the use of mediation in a variety of contexts. This
research sheds light on steps that counsel can take to help promote settlement. These studies of
programs in North Carolina, Minnesota and Ohio, indicate that cases are more likely to settle in
mediation if there is less disparity between parties’ initial negotiating positions. The data also confirms
that cases are more likely to settle if the attorneys cooperate and if both the attorney and client
participate fully in the mediation.

http://www.brucemeyerson.com/articles/a_001.html

LEGAL RECOGNITION OF MEDIATION IN INDIA

The concept of mediation received legislative recognition in India for the first time in the
Industrial Disputes Act, 1947. The conciliators appointed under Section 4 of the Act are ”
charged with the duty of mediating in and promoting the settlement of Industrial disputes.”
Detailed procedures were prescribed for conciliation proceedings under the Act.

Arbitration, as a dispute resolution process was recognized as early as 1879 and also found a
place in the Civil Procedure Code of 1908. When the Arbitration Act was enacted in 1940 the
provision for arbitration originally contained in Section 89 of the Civil Procedure Code was
repealed. The Indian Legislature made headway by enacting The Legal Services Authorities Act,
1987 by constituting the National Legal Services Authority as a Central Authority with the Chief
Justice of India as its Patron-in-Chief.

The Indian parliament enacted the Arbitration and Conciliation Act in 1996, making elaborate
provisions for conciliation of disputes arising out of legal relationship, whether contractual or
not, and to all proceedings relating thereto. The Act provided for the commencement of
conciliation proceedings, appointment of conciliators and assistance of suitable institution for the
purpose of recommending the names of the conciliators or even appointment of the conciliators
by such institution, submission of statements to the conciliator and the role of conciliator in
assisting the parties in negotiating settlement of disputes between the parties.

In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Sec.89 in the
Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR
which included mediation. The Amendment was brought into force with effect from 1st July,
2002.

Since the inception of the economic liberalization policies in India and the acceptance of law
reforms the world over, the legal opinion leaders have concluded that mediation should be a
critical part of the solution to the profound problem of arrears of cases in the civil courts.
Mandatory mediation through courts has now a legal sanction. Court-Annexed Mediation and
Conciliation Centres are now established at several courts in India and the courts have started
referring cases to such centres. In Court-Annexed Mediation the mediation services are provided
by the court as a part and parcel of the same judicial system as against Court-Referred
Mediation, wherein the court merely refers the matter to a mediator.

One feature of court-annexed mediation is that the judges, lawyers and litigants become
participants therein, thereby giving them a feeling that negotiated settlement is achieved by all
the three actors in the justice delivery system. When a judge refers a case to the court-annexed
mediation service, keeping overall supervision on the process, no one feels that the system
abandons the case. The Judge refers the case to a mediator within the system. The same lawyers
who appear in a case retain their briefs and continue to represent their clients before the
mediators within the same set-up. The litigants are given an opportunity to play their own
participatory role in the resolution of disputes. This also creates public acceptance for the process
as the same time-tested court system, which has acquired public confidence because of integrity
and impartiality, retains its control and provides an additional service. In court-annexed
mediation, the court is the central institution for resolution of disputes. Where ADR procedures
are overseen by the court, at least in those cases which are referred through courts, the effort of
dispensing justice can become well-coordinated.

ADR services, under the control, guidance and supervision of the court would have more
authenticity and smooth acceptance. It would ensure the feeling that mediation is complementary
and not competitive with the court system. The system will get a positive and willing support
from the judges who will accept mediators as an integral part of the system. If the reference to
mediation is made by the judge to the court annexed mediation services, the mediation process
will become more expeditious and harmonized. It will also facilitate the movement of the case
between the court and the mediator faster and purposeful. Again, it will facilitate reference of
some issues to mediation

https://blog-ipleaders-in

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Difference between Arbitration and Mediation
Although mediation and arbitration have the same goal in mind, a fair resolution of the issues at
hand, there are some major differences which both parties must understand beforehand.
The main difference between arbitration and mediation is that in arbitration the arbitrator hears
evidence and makes a decision. Arbitration is like the court process as parties still provide
testimony and give evidence similar to a trial but it is usually less formal. In mediation, the
process is a negotiation with the assistance of a neutral third party. The parties do not reach a
resolution unless all sides agree.

Mediators do not issue orders, find fault, or make determinations. Instead, mediators help
parties to reach a settlement by assisting with communications, obtaining relevant information,
and developing options. Although mediation procedures may vary, the parties usually first meet
together with the mediator informally to explain their views of the dispute. Often the mediator will
then meet with each party separately. The mediator discusses the dispute with them, and
explores with each party possible ways to resolve it. It is common for the mediator to go back
and forth between sides a number of times. The main focus remains on the parties as they work
towards a mutually beneficial solution. Most disputes are successfully resolved and often the
parties will then enter into a written settlement agreement. Many people report a higher degree
of satisfaction with mediation than with arbitration or other court processes because they can
control the result and be part of the resolution.

Arbitration, on the other hand, is generally a more formal process than mediation. An arbitrator
could be a retired judge, a senior lawyer or a professional such as an accountant or engineer.
During arbitration, both parties are given an opportunity to present their cases to the arbitrator.
Much like a regular court proceeding, lawyers can also question witnesses from both sides.
During arbitration, there are usually little if any out-of-court negotiations between parties. The
arbitrator has the power to render a legally binding decision which both parties must honour and
the award is enforceable in our courts and the courts of 142 countries.

http://bcicac.com/about/what-is-mediationarbitration/difference-between-arbitration-and-mediation/

STYLE OF MEDIATION

Facilitative Mediation
In the 1960's and 1970's, there was only one type of mediation being taught and practiced,
which is now being called "Facilitative Mediation". In facilitative mediation, the mediator
structures a process to assist the parties in reaching a mutually agreeable resolution. The
mediator asks questions; validates and normalizes parties' points of view; searches for interests
underneath the positions taken by parties; and assists the parties in finding and analyzing
options for resolution. The facilitative mediator does not make recommendations to the parties,
give his or her own advice or opinion as to the outcome of the case, or predict what a court
would do in the case. The mediator is in charge of the process, while the parties are in charge of
the outcome.

Facilitative mediators want to ensure that parties come to agreements based on information and
understanding. They predominantly hold joint sessions with all parties present so that the
parties can hear each other's points of view, but hold caucuses regularly. They want the parties
to have the major influence on decisions made, rather than the parties’ attorneys.
Facilitative mediation grew up in the era of volunteer dispute resolution centers, in which the
volunteer mediators were not required to have substantive expertise concerning the area of the
dispute, and in which most often there were no attorneys present. The volunteer mediators
came from all backgrounds. These things are still true today, but in addition many professional
mediators, with and without substantive expertise, also practice facilitative mediation.

Evaluative Mediation
Evaluative mediation is a process modeled on settlement conferences held by judges. An
evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of
their cases, and predicting what a judge or jury would be likely to do. An evaluative mediator
might make formal or informal recommendations to the parties as to the outcome of the issues.
Evaluative mediators are concerned with the legal rights of the parties rather than needs and
interests, and evaluate based on legal concepts of fairness. Evaluative mediators meet most
often in separate meetings with the parties and their attorneys, practicing “shuttle diplomacy”.
They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of
pursuing a legal resolution rather than settling in mediation. The evaluative mediator structures
the process, and directly influences the outcome of mediation.

Evaluative mediation emerged in court-mandated or court-referred mediation. Attorneys

normally work with the court to choose the mediator, and are active participants in the
mediation. The parties are most often present in the mediation, but the mediator may meet with
the attorneys alone as well as with the parties and their attorneys. There is an assumption in
evaluative mediation that the mediator has substantive expertise or legal expertise in the
substantive area of the dispute. Because of the connection between evaluative mediation and
the courts, and because of their comfort level with settlement conferences, most evaluative
mediators are attorneys.

Transformative Mediation
Transformative mediation is the newest concept of the three, named by Folger and Bush in their
book THE PROMISE OF MEDIATION in 1994. Transformative mediation is based on the values
of "empowerment" of each of the parties as much as possible, and "recognition" by each of the
parties of the other parties' needs, interests, values and points of view. The potential for
transformative mediation is that any or all parties or their relationships may be transformed
during the mediation. Transformative mediators meet with parties together, since only they can
give each other "recognition".

In some ways, the values of transformative mediation mirror those of early facilitative mediation,
in its interest in empowering parties and transformation. Early facilitative mediators fully
expected to transform society with these pro-peace techniques. And they did. Modern
transformative mediators want to continue that process by allowing and supporting the parties in
mediation to determine the direction of their own process. In transformative mediation, the
parties structure both the process and the outcome of mediation, and the mediator follows their
lead.

Pros and Cons

Supporters say that facilitative and transformative mediation empower parties, and help the
parties take responsibility for their own disputes and the resolution of the disputes. Detractors
say that facilitative and transformative mediation takes too long, and too often ends without
agreement. They worry that outcomes can be contrary to standards of fairness and that
mediators in these approaches cannot protect the weaker party.
Supporters of transformative mediation say that facilitative and evaluative mediators put too
much pressure on clients to reach a resolution. They believe that the clients should decide
whether they really want a resolution, not the mediator.

Supporters of evaluative mediation say that clients want an answer if they can’t reach
agreement, and they want to know that their answer is fair. They point to ever-increasing
numbers of clients for evaluative mediation to show that the market supports this type of
mediation more than others. Detractors of evaluative mediation say that its popularity is due to
the myopia of attorneys who choose evaluative mediation because they are familiar with the
process. They believe that the clients would not choose evaluative mediation if given enough
information to make a choice. They also worry that the evaluative mediator may not be correct
in his or her evaluation of the case.

Strong Feelings
Mediators tend to feel strongly about these styles of mediation. Most mediation training still
teaches the facilitative approach, although some attorney-mediators train in the evaluative
model, and Folger and Bush have a complement of trainers teaching the transformative
approach. Many mediation standards (from national and state mediation organizations, and
state legislative and judicial mediation programs) are silent on this issue; others prohibit
evaluation, and a few require it. For example, the Mediation Council of Illinois Standard IV (C)
Best Interests of Children states: "While the mediator has a duty to be impartial, the mediator
also has a responsibility to promote the best interests of the children and other persons who are
unable to give voluntary, informed consent.......If the mediator believes that any proposed
agreement does not protect the best interests of the children, the mediator has a duty to inform
the couple of his or her belief and its basis."

Another example of these strong feelings is that in 1997, Florida’s professional standards for
mediators were reviewed, and the committee got stuck on the issue of evaluation in mediation.
The current rule says "a mediator should not offer information that a mediator is not qualified to
provide" (Rule 10.090(a)) and "a mediator should not offer an opinion as to how the court in
which the case has been filed will resolve the dispute" (Rule 10.090(d)). The committee came
out with two options for a new standard on this issue: Option One would prohibit giving opinions
except to point out possible outcomes of the case; Option Two states that the mediator could
provide information and advice the mediator is qualified to provide, as long as the mediator does
not violate mediator impartiality or the self-determination of the parties. After receiving
comments on these two options, both were withdrawn and the committee is trying again. The
comments were many and strong. Early in 2000, the new rule was written to reflect Option Two.

In a new Michigan Court Rule effective August 1,2000, which authorizes judges to order cases
to mediation, the Supreme Court of Michigan differentiated facilitative processes from evaluative
processes. The rule states that courts may order parties to facilitative processes, but not to
evaluative processes.

Concerns
There seem to be more concerns about evaluative and transformative mediation than facilitative
mediation. Facilitative mediation seems acceptable to almost everyone, although some find it
less useful or more time consuming. However, much criticism has been leveled against
evaluative mediation as being coercive, top-down, heavy-handed and not impartial.
Transformative mediation is criticized for being too idealistic, not focused enough, and not
useful for business or court matters. Evaluative and transformative mediators, of course, would
challenge these characterizations. Sam Imperati, for example, sees evaluative mediation as
 ranging from soft to hard: from raising options, to playing devil's advocate, to raising legal issues
or defenses, to offering opinions or advice on outcomes. He therefore believes that it is not
appropriate to assume that evaluative mediation is necessarily heavy-handed. Folger and Bush,
on the other side of the discussion, see transformative mediation as ultimately flexible and
suited to all types of disputes.

Another concern is that many attorneys and clients do not know what they may get when they
end up in a mediator’s office. Some people feel that mediators ought to disclose prior to clients
appearing in their offices, or at least prior to their committing to mediation, which style or styles
they use. Other mediators want the flexibility to decide which approach to use once they
understand the needs of the particular case.

Sample mediation agreements

In most mediation cases, the parties involved reach some agreements which
help them to work together more effectively.

These agreements are usually a brief summary of important issues that the
parties have agreed on, and use the parties' own words to detail how they
have decided to move forward. The agreements are completely confidential
and may be used to jog the memories of the individuals when they return to
the workplace. Because the agreements are confidential, they are not legally
binding and cannot be referred to in any future procedures.

Mediation agreements might include:

 Details of how the parties will communicate with each other in the
future
 Commitments to each other about behaviour
 A summary of any general understanding between the parties
 What the parties will do if one or both feel that their agreement is
not working effectivel

2.  Scope of Mediation
The parties understand that it is for the parties, with the mediator's concurrence, to
determine the scope of the mediation and this will be accomplished early in the
mediation process.

3.  Mediation is Voluntary

All parties here state their good faith intention to complete their mediation by an
agreement. It is, however, understood that any party withdraw from or suspend the
mediation process at any time, for any reason or no reason.

The parties also understand that the mediator may suspend or terminate the
mediation, if the mediator feels that the mediation will lead to an unreasonable
result, if the mediator feels that an impasse has been reached, or if the mediator
determines that he can no long effectively perform his facilitative role.

4.  Confidentiality

It is understood between the parties and the mediator that the mediation will be
strictly confidential. Mediation discussions, any draft resolutions and any unsigned
mediated Agreements shall not be admissible in any court, administrative or other
contested proceeding. Only a mediated Agreement signed by any parties may be so
admissible. The parties further agree to not call the mediator to testify concerning
the mediation nor to provide any materials from the mediation in any court or other
contested proceeding between the parties. The mediation is considered by the
parties and the mediator as settlement negotiations. All parties also understand and
agree that the mediator may have private caucus meetings and discussions with
any individual party, in which case all such meetings and discussions shall be
confidential between the mediator and the caucusing party(ies), unless the parties
agree otherwise.

5.  Mediator Impartiality and Neutrality

The parties understand that the mediator must remain impartial throughout and
after the mediation process. Thus, the mediator will not champion the interests of
any party over another in the mediation nor in any court or other proceeding. The
mediator is to be impartial as to party and neutral as to the results of the
mediation. The mediator will seek to affirmatively reveal any operative biases and
will disclose any and all prior contacts with the parties and their legal counsel.

6.  Mediation Fees

The parties and the mediator agree that the fee for the mediator shall be $250 per
hour for time spent with the parties and for time required to study documents,
research issues, correspond, telephone call, prepare draft and final Agreements and
do such other things as may be reasonably necessary to facilitate the parties
reaching full Agreement. The mediator shall also be reimbursed for all expenses
incurred as a part of the mediation process.

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